Friday, March 27, 2009

Judge neuters Hailey pot initiatives

City still required to advocate for marijuana reform

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By TERRY SMITH
Express Staff Writer

A judge's ruling this week took the teeth out of two controversial marijuana initiatives that were approved by Hailey voters, but left intact a requirement that the city advocate for reform of marijuana and industrial hemp laws.

Blaine County 5th District Court Judge Robert J. Elgee, in a decision filed Tuesday, voided portions of the initiatives that would have legalized medical marijuana use in the city and would have made enforcement of marijuana laws the lowest priority for Hailey police. The judge also voided language in the initiatives that would have required individual city officials to advocate for marijuana reform.

However, provisions of the initiatives that require the city as an entity to advocate for marijuana reform were left intact, as were provisions that require the city to establish community committees regarding marijuana and hemp issues.

Hailey voters approved three marijuana and industrial hemp initiatives in 2007 and again in 2008. The initiatives were titled the Hailey Medical Marijuana Act, the Hailey Lowest Police Priority Act and the Hailey Industrial Hemp Act.

The city delayed implementing the initiatives into law, and instead Mayor Rick Davis, City Councilman Don Keirn and Hailey Police Chief Jeff Gunter filed a lawsuit last May against the city seeking a judicial review of the legality of the initiatives. Arguments were presented to Elgee at a court hearing in February.

Davis, Keirn and Gunter were represented by Hailey attorney Keith Roark, while City Attorney Ned Williamson found himself in the unusual position of arguing for the initiatives.

Ryan Davidson, the Garden City man who got the initiatives on the Hailey ballot, said the city should have appointed an outside attorney to handle the case.

"It's just so incestuous," Davidson said.

"I'll take issue with that," Williamson said, "but at least now we can move on."

Contrary to state law

Elgee ruled as contrary to Idaho law a provision in the Medical Marijuana Act that would have allowed doctors to prescribe the drug for medicinal use and would have allowed individuals to possess up to 35 grams of the substance, the equivalent of about 1.3 ounces.

The judge ruled that a provision of the Lowest Police Priority Act that put restraints on enforcement of marijuana laws is illegal because it addresses an administrative function and is "not an appropriate subject for a ballot initiative."

Elgee voided out language in all three initiatives that would have required individual city officials to advocate for reform of marijuana laws, ruling that the provisions violate "free speech" guarantees of the U.S. Constitution.

Gunter said Wednesday that he is pleased with the judge's ruling.

"If I want to advocate something, that should be my right and not something I'm directed to do," the police chief said. "I'm also pleased he voided the lowest police priority requirement because that would have affected our relationships with other agencies as we battle illegal drug use and would have affected drugs other than just marijuana."

Elgee left the Industrial Hemp Act almost intact; however, the act is basically an advocacy statement and does not provide for growing or using hemp in the city. Industrial hemp and marijuana are varieties of the same plant species, Cannabis sativa L, but hemp is grown for its stem fibers and seeds and is low in THC, the chemical that produces a high.

Councilman Keirn said he's not sure how the city is going to implement remaining provisions of the initiatives that require Hailey to advocate for reform of marijuana laws and to establish community committees.

"A city as an entity has no voice unless we give it one." Keirn said. "If we don't have to support it as individuals, I don't see how we can do it as a city. We'll probably leave it up to the city attorney. We can pass that one back and forth for a while."

Keirn said he is basically pleased with Elgee's ruling, but wishes the judge had killed the initiatives outright.

"This one didn't quite put it to bed," he said.

Mayor Davis declined to comment on the judge's ruling, other than to say, "From what I can tell, I got what I wanted."

Appeal Unlikely

"I am not going to recommend that we appeal this decision," Williamson said.

Davidson said he may file as a third party intervener and seek to appeal Elgee's decision on his own.

"I think on technical grounds, the decision can be overturned because the city wasn't injured, nor did it claim to be injured, and that's a requirement for a lawsuit," he said. "The city from day on has been in violation of the law because they wouldn't enforce it, whereas they should have been required to enforce it until it was ruled unconstitutional."

"I'm glad he left some parts of the initiatives intact," Davidson added.

Williamson said he's pleased that the city has received the judicial clarification it needed regarding the initiatives.

"The people spoke when they voted for this, but just like with the Legislature, laws have to be subjected to legal scrutiny," he said.

Terry Smith: tsmith@mtexpress.com